SIXTH AMENDMENT TO ADDENDUM TO CREDIT AGREEMENT (Agency Provisions)
EX-10.2 3 exhibit10-2.htm
Total Commitment: $75,000,000.00
SIXTH AMENDMENT TO ADDENDUM TO CREDIT AGREEMENT
(Agency Provisions)
(Agency Provisions)
This Sixth Amendment to Addendum to Credit Agreement (this "Amendment") is made as of June 5, 2017, by and among the financial institutions from time to time signatory hereto (individually, a "Lender" and collectively, the "Lenders"), ZB, N.A. dba CALIFORNIA BANK & TRUST (who also does business as California Bank & Trust, a division of ZB, N.A.), successor by merger to California Bank & Trust, as Administrative Agent for the Lenders (in such capacity, the "Agent"), and Owens Realty Mortgage, Inc., a Maryland corporation ("Borrower").
RECITALS
A. Borrower, Agent and Lenders entered into that certain Amended and Restated Credit Agreement, dated April 16, 2015 (as amended and modified through but excluding the date hereof, by that certain (i) First Amendment to Amended and Restated Credit Agreement and Loan Documents (the "First Amendment") dated March 1, 2016, among Agent, Borrower and Lenders, (ii) Second Amendment to Amended and Restated Credit Agreement and Loan Documents (the "Second Amendment") dated May 5, 2016, among Agent, Borrower and Lenders, (iii) Third Amendment to Amended and Restated Credit Agreement and Loan Documents (the "Third Amendment") dated June 3, 2016, among Agent, Borrower and Lenders, (iv) Fourth Amendment to Amended and Restated Credit Agreement dated October 19, 2016, (v) Omnibus Amendment to Loan Documents (the "Omnibus Amendment") dated January 30, 2017, among Agent, Borrower and Lenders, and (vi) Sixth Amendment to Amended and Restated Credit Agreement dated March 1, 2017, the "Credit Agreement").
B. The Credit Agreement is evidenced by that certain (i) Amended and Restated Master Revolving Note in the principal amount of $35,000,000, by Borrower to the order of California Bank & Trust, a division of ZB, N.A., dated as of March 1, 2016 and (ii) Master Revolving Note in the principal amount of $20,000,000, by Borrower to the order of First Bank, dated as of March 1, 2016 (as amended by that certain First Note Revision Agreement dated March 1, 2017, executed by Borrower and accepted by First Bank), each such Note as amended by the Omnibus Amendment. The Credit Agreement may in the future be evidenced by additional loans made pursuant to a new Sublimit Facility under the Credit Agreement and pursuant to the terms of the Advance Formula Agreement. Concurrently herewith, Borrower is executing a new Master Revolving Note in the principal amount of $20,000,000, payable to the order of Umpqua Bank and new restated notes in favor of the existing Lenders (the "New Notes").
C. Borrower executed various documents and agreements in connection with the Credit Agreement, including, but not limited to the following: (i) Amended and Restated Advance Formula Agreement dated April 16, 2015, among Agent, Lenders and Borrower (as amended and modified through but excluding the date hereof, by (A) the First Amendment, (B) the Second Amendment, (C) the Third Amendment, (D) that certain Fourth Amendment to Amended and Restated Advance Formula Agreement dated October 19, 2016, and (E) the Omnibus Amendment, the "Advance Formula Agreement"), (ii) Addendum to Credit Agreement (Agency Provisions) dated April 16, 2015, among Agent, Lenders and Borrower (as amended and modified through but excluding the date hereof, by (A) the First Amendment, (B) the Second Amendment, (C) that certain Third Amendment to Addendum to Credit Agreement (Agency Provisions) dated October 19, 2016, and (D) the Omnibus Amendment, and (E) that certain Fourth Amendment to Addendum to Credit Agreement (Agency Provisions) dated March 1, 2017, the "Addendum to Credit Agreement"), (iii) Security Agreement dated April 16, 2015, in favor of Agent and Lenders, as amended by the Omnibus Amendment, (iv) Reference Agreement as amended by the Omnibus Amendment and (v) various Pledge Agreements and Amended and Restated Pledge Agreements, as amended by (A) the First Amendment, (B) that certain Omnibus Amendment to Pledge Agreements and Amended and Restated Pledge Agreements, and (C) the Omnibus Amendment (together with Collateral Assignments of Deeds of Trust and related agreements in connection therewith) in favor of Agent and Lenders. As of the date of this Amendment, the Loan is not secured directly by any real property.
D. Agent, Lenders and Borrower have agreed to amend the Addendum to Credit Agreement, on the terms and conditions set forth below.
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AGREEMENT
NOW, THEREFORE, for value received, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions. Unless otherwise indicated, words and terms which are defined in the Advance Formula Agreement have the same meaning where used herein.
2. Amendment to Addendum to Agreement.
2.1 In Recital A to the Addendum to Credit Agreement, the reference to "Fifty Five Million and No/100 Dollars ($55,000,000)" is changed to "Seventy Five Million Dollars ($75,000,000)".
2.2 In Section 2(c) of the Addendum, the extra availability has been fully utilized and the availability is now zero.
2.3 Schedule I to the Addendum to Credit Agreement is replaced in its entirety with the attached Schedule I.
2.4 Schedule 2 to the Addendum to Credit Agreement is replaced in its entirety with the attached Schedule II.
3. Payment of Fees, Costs and Expenses. Borrower shall pay Bank, on demand, all fees, costs and expenses relating to this Amendment, including without limitation, all fees, costs and expenses (including attorney's fees and costs, whether out-of-pocket or recoverable pursuant to statute or court rule) incurred by Bank in advising, negotiating, structuring, drafting, reviewing, amending, terminating, enforcing, defending or concerning this Amendment, the Credit Agreement, any of the Loan Documents or any agreement related thereto, whether or not suit is brought.
4. Conditions to Effectiveness. The effectiveness of this Amendment is conditioned upon the Bank's receipt of the following items, in form and content acceptable to the Bank:
4.1 A fully executed counterpart of this Amendment.
4.2 A fully executed counterpart of the Seventh Amendment to Credit Agreement and the New Notes.
4.3 Evidence that the execution, delivery and performance by the Borrower of this Amendment and any instrument or agreement required under this Amendment have been duly authorized.
4.4 Payment by the Borrower of all costs, expenses and attorneys' fees incurred by the Bank in connection with this Amendment.
5. Governing Law. This Amendment shall be governed and controlled in all respects by the laws of the State of California, without regard to any conflict of law provisions or principles, including interpretation, enforceability, validity and construction.
6. Integration. This Amendment embodies the entire agreement and understanding among the parties hereto relating to the subject matter hereof and supersedes all prior agreements and understandings relating to the subject matter hereof. No course of prior dealings among the parties hereto, no usage of trade, and no parol or extrinsic evidence of any nature, shall be used or be relevant to supplement, explain or modify any term used herein. In the event of any conflict between the terms and provisions of this Amendment and the Loan Documents, the terms and provisions of this Amendment shall control. This Amendment is a product of negotiation and preparation by and among the parties hereto. Therefore, Borrower and Bank expressly waive the provisions of Civil Code Section 1654 and acknowledge and agree that this Amendment should not be deemed prepared or drafted by any one party or any other and shall be construed accordingly.
7. No Oral Modifications. The terms of this Amendment cannot be waived, modified or amended except by a writing signed by the parties to this Amendment. Each party agrees that he, she or it will not rely upon any oral or other non-written waiver, modification or amendment.
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8. Reliance. Borrower has not relied upon any statement, representation or promise of Bank or any person or entity acting on Bank's behalf in executing this Amendment or any related documents or instruments, except as expressly stated in this Amendment or in the related documents or instruments. Nothing contained in this Amendment is intended to confer any rights, powers or privileges on any person or entity other than the undersigned parties and their heirs, successors and assigns.
9. Counterparts. This Amendment may be executed in counterparts and facsimiles and the counterpart, when properly executed and delivered, will constitute a fully executed complete agreement.
10. Liens. Nothing herein contained or done pursuant hereto shall affect or impair or be construed to affect or impair the lien, charge or encumbrance created by any Pledge Agreement or the priority thereof over other liens, charges or encumbrances, if any, or to release or affect the liability of any party or parties whomsoever who may now or hereafter be liable under or on account of the Loan Documents.
11. Successors and Assigns. This Amendment shall apply to, bind and inure to the benefit of the heirs, administrators, executors, legal representatives, successors and assigns of Pledgor and the endorsees, transferees, successors and assigns of Agent and Lenders.
[Signatures on following page(s)]
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IN WITNESS WHEREOF, the parties hereto have executed this document as of the date first above written.
Borrower:
Owens Realty Mortgage, Inc.,
a Maryland corporation
By: ________________________________
Name: Bryan H. Draper
Title: Chief Executive Officer and President
a Maryland corporation
By: ________________________________
Name: Bryan H. Draper
Title: Chief Executive Officer and President
AGENT:
ZB, N.A. dba CALIFORNIA BANK & TRUST
ZB, N.A. dba CALIFORNIA BANK & TRUST
(who also does business as California Bank & Trust,
a division of ZB, N.A.), successor by merger to
California Bank & Trust, as Agent
By: _________________________________
Thomas C. Paton, Jr.
Senior Vice President and Manager
Thomas C. Paton, Jr.
Senior Vice President and Manager
LENDERS:
ZB, N.A. dba CALIFORNIA BANK & TRUST
(who also does business as California Bank & Trust,
a division of ZB, N.A.), successor by merger to
California Bank & Trust
By:_________________________________
Thomas C. Paton, Jr.
Senior Vice President and Manager
Senior Vice President and Manager
FIRST BANK
By:_________________________________
Name:
Title:
Title:
UMPQUA BANK
By:_________________________________
Name:
Title:
Title:
Schedule 1
Lenders; Total Commitment – Pro Rata Share
Total Commitment: $75,000,000.00
| Commitment | Lender | Pro Rata Share of Total Commitment | Address/Tel/Fax/E-Mail |
| $35,000,000.00 | ZB, N.A., dba California Bank & Trust | 46.6666% | ZB, N.A, dba California Bank & Trust 456 Montgomery Street, 23rd Floor San Francisco, CA 94104 Attn: Thomas C. Paton, Jr. Senior Vice President Tel: 415 ###-###-#### Fax: 415 ###-###-#### E-Mail: ***@*** |
| $20,000,000.00 | First Bank | 26.6666% | First Bank 1700 North Broadway, Suite 201 Walnut Creek, CA 94596 Attn: Randy Lee Tel: _____________ Fax: ____________ E-Mail: _______________ |
| $20,000,000.00 | Umpqua Bank | 26.6666% | Umpqua Bank ____________________________ ____________________________ Attn: _______________________ Tel: _____________ Fax: ____________ E-Mail: _______________ |
